' This petition under the provisions of section 561-A, Cr.. P. C. Has been filed by the petitioner seeking quashment of the proceedings of a criminal case pending against the petitioner in the Court of Rana Abdul Khaliq, Magistrate 1st Class at Lahore, under the provisions of section 406/420 of the Pakistan Penal Code. The aforesaid case was registered against the petitioner by New Anarkali Police Station, vide F. I. R. No, 71, dated 13th May, 1982.
2. Precisely, the allegations against the petitioner as narrated in the F. I. R. Are, that the petitioner, his four real brothers and a real maternal uncle had induced the complainant to invest the money in his business. It is further alleged in the F. I. R., that the said inducement was given by the petitioner and the co-accused, to the complainant and his other relatives in such a way that they had to part with a sum of Rs, 12,17,000 so that in the alleged new lucrative business of the petitioner, huge profits could be earned and shared. The F. I. R. Further reveals, that on the said inducement not only the complainant, but his other relatives parted with the aforesaid amount, but subsequently it transpired, that the aforesaid amount had not been invested in the expansion of business. It was further alleged, that no profits were earned and distributed to the investees. It was also alleged, that on the demand of the complainant and his relatives, the petitioner executed documents and pro-note for the payment of money and few cheques were also issued which were not en cashed.
The complainant thus asserted, that he and his relatives had been cheated within the meaning of section 415 of the Pakistan Penal Code and, therefore, the petitioner was liable to be punished under section 406/420 of the Pakistan Penal Code. It was also asserted that when the cheques were dishonoured, the intention of the petitioner was obviously to cheat. The police on the basis of these allegations submitted a challan in the Court of Rana Abdul Khaliq, Magistrate 1st Class at Lahore against the petitioner, while the remaining co-accused were got discharged by the police.
3. In support of this petition, it is contended by the learned counsel, that it was essentially a civil transaction which has been cleverly converted into a criminal one and, therefore, the proceedings amount to abuse of process of the Court and were liable to be quashed. It was further contended on behalf of the petitioner, that the complainant had also instituted a civil suit for the recovery of the aforesaid amount and the aforesaid suit was pending in the civil Court at Lahore and, therefore, there was no justification for the pendency of the criminal proceedings against the petitioner. It was further pointed out on behalf of the petitioner, that in the report submitted by the police under section 173, Cr. P. C. It was stated that during the investigation the parties had settled their dispute and the complainant had agreed to accept Rs, 1,70,000 despite that the criminal proceedings were launched against the petitioner. In support of the above contentions, the learned counsel for the petitioner cited the following judgments :- (i)Gul Jamal Khan and another v. Shah Jahan Khan 1971 P Cr. L J 943 (Lahore).
(ii) Raza AB and 3 others v. The State and another 1971 P Cr. L J 1296 (Karachi).
(iii) Haider Ali v. Khuda Dino and another 1976 P Cr. L J 195 (Karachi).
(iv) Sher Afghan and another v. Messrs Siddique and Saeed Ltd., Karachi and another 1980 P Cr. L I 435 (Karachi).
(v) M. M. S. T. Chidambaram Chettiar v. Shanmugham Filial AIR. 1938 Mad.
129.
(vi) Muhammad Asghar Malik v. Maj. (Retd.) Abdul Karim Rana P L 1974 Cr. C (Lah.) 496 and
(vii) Ch. Riasat All and another v. The State 1970 P Cr. L J 445 (Lahore).
4. I have carefully gone through the facts of the case and also the above-noted reported cases cited by the learned counsel for the petitioner. In this context I am reminded of the reported case as Ghulam Muhammad v. Muzammal Khan and 4 others (1) and Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan (2). Precisely, their Lordships of the Supreme Court observed as under :- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Cod itself. The power given by this section can certainly not be s utilized as to interrupt or divert the ordinary course of criminal , procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a corn patent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence".
5. In the light of the above observations, it will be noted, that the trial Court has yet to hear and appraise the evidence, as to the inducement B on the part of the petitioner whereby the complainant and others were made to part with the money. In this context it will be useful to reproduce (1)PLD 1967 SC 317 (2) PLD 1971 SC 677 the definition of cheating as laid down in section 415 of the Pakistan Penal Code :- 415.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall. Retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person (or any other person) in body, mind, reputation or property, is said to "cheat".
6. Therefore, in my view, it is premature at this stage to hold that no case against the petitioner is made out. Similarly in this context the case reported as Raja Hag Nawaz v. Muhammad Afzal and 4 others (1) cannot be lost sight of. Their Lordships of the Supreme Court in the aforesaid case observed as under :- "Quashment of proceedings at so early a stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. It is necessary that these cases should be examined further, to ensure that the course of even-handed justice has not been prejudiced".
7. In this view of the matter, I would be reluctant to adopt a course whereby the stifling of the criminal prosecution takes place in exercise of the jurisdiction vesting in this Court under section 561-A, Cr. P. C.
8. As far as the pendency of the civil suit as a bar to the pendency of the criminal proceedings is concerned, the Law has been settled. By their Lordships of the Supreme Court in the case reported as Syed Muhammad Ahmad v. The State (2). Their Lordships observed that mere filing of a civil suit is not a bar to the continuation of the criminal case and even if the civil case as well as the criminal proceedings relate to the same subject-matter, there is no inflexible rule, that the criminal proceedings must be quashed. On the other hand, in my view, a transaction may give rise to an action in civil as well as in criminal law and a perso aggrieved can have resort to both the remedies. Unfortunately, in our country in cases of dishonest and fraudulent inducement, no effective remedy exists with the person aggrieved to seek redress, because there is thin line of distinction between the civil and criminal liability and very cleverly criminal act of cheating is painted as a civil liability. In my view, this distinction is a question of fact and the determination thereof, depends upon the nature of the evidence to be adduced in the trial Court. Without affording an opportunity to such person to adduce evidence in support of his claim, it will rather be the abuse of the provisions of section 561-A, Cr. P. C. To quash the proceedings, as is the piesent case before me. The same view was again followed by the Supreme Court of Pakistan in the case reported as Marghodb Alam v. Shamas Din (3). The same view was taken in an illuminating judgment delivered by my lord. Mr. Justice Aslam Riaz Hussain, Judge of this Court as he then was, in the case reported as Rehmat Ullah v. Abdul Adz and others (4). In this judgment my lord, Mr. Justice Aslam Riaz Hussain
(1) PLD 1967 SC 354 (2) 1972 SCMR 85
(3) NLR 1983 U C 250 (4) 1974 P Cr. L J 541 had carefully analysed all the judgments on the subject to arrive at the conclusion which I am respectfully adopting in this judgment. It will also be advantageous to refer to another case reported as Allah Rakha and 2 others v. Abdul Qadoos and another (1). In this judgment it was held as under :- "The applicants have yet to prove their defence. Mere allegations in this application will not lead to the conclusion that the complaint lodged by the respondent is false since the Magistrate after holding the preliminary inquiry has found a prima facie case made out against the applicants.
Provisions of section 561-A, Cr. P. C. Cannot be used to obstruct or divert the ordinary course of criminal procedure. Let the case proceed according to law and let the accused-applicants prove that the case is false".
9. Yet in another case reported as Khawaja Fazal Karim v. The State and others (2) the same view was again reiterated by the Supreme Court of Pakistan and I am bound by the said view.
Consequently, in my view. This petition must fail and is hereby dismissed being premature.
10. I had reserved this judgment and on 10th of September, 1985, I had to announce it. The learned counsel for the petitioner, Mr. Faqi Muhammad Khokhar appeared and sought permission to withdraw this petition. I am afraid that at this belated stage I cannot accede to the request of the learned counsel for the petitioner to allow him to withdraw this petition.
(1) 1981 P Cr. L J 1273 (2) 1976 Law Notes SC 432